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Tag: second amendment

The flagship publication of the DC Bar Association is the Washington Lawyer. The December issue reviews a new book by legal journalist Jeffrey Toobin, The Oath. Here’s an excerpt from the magazine’s regular reviewer, Ronald Goldfarb:

What is clear is Toobin’s ability to tell intriguing stories, and also to present sound overviews of important cases and the jurisprudence they represent without dumbing down the legal analysis. An example is his story behind the notorious District of Columbia v. Heller case dealing with gun control. I know the inside story from the man behind the case (not Dick Heller, the selected plaintiff, but Robert Levy, the chair of the board of directors of Cato Institute who dreamed up the case and managed its route to new constitutional law), and Toobin’s story rings true. Toobin’s characterization of the politics, history, and constitutional law surrounding this very important decision is smart and informative. His conclusion that Justice Antonin Scalia’s majority opinion was “an improvisation designed to reach a policy goal” is ironic. Scalia argues that the Constitution is “dead,” not a living document, and Toobin shows how perverted Scalia’s theory is by using the justice’s own words and reasoning in Heller. Rather than an example of his repeated preaching that the Constitution is “textualist” and “originalist,” Scalia’s opinion demonstrates that the Constitution is what the justices say it is: always dressed up in chameleonic jurisprudence to suit the justices’ predilections and to reach their political conclusions. (Bush v. Gore is a classic example.)

There you have it: A sound overview without dumbing anything down. Cato chairman Bob Levy “dreamed up” an idea about some constitutional right to keep and bear arms. Then Justice Scalia said, “My predilections match your dream!” Scalia then cobbled together some nice-sounding arguments and now America has to live with this darn Heller precedent.

Mr. Toobin, the book author, makes the claim that Scalia was once a “conservative intellectual” but is now a “right wing crank.” The book reviewer, Mr. Goldfarb, then informs us that Toobin’s treatment of the justices is “quite balanced.” (I know you don’t believe me—so go read it yourself.)

For a quick blog post, suffice it to say that Scalia was not alone on this. Four other justices agreed with his conclusion in Heller. I would also note that distinguished liberal scholars—Sanford Levinson, William Van Alstyne, and Nat Hentoff, to name a few—hold similar views of the Second Amendment.

For more on the Heller case and the Second Amendment, go here and here.

For another look at the worldview of establishment liberalism, go here.

NPR ran a story this morning, “NRA Targets One Of Its Own In Tenn. Race,” that nicely illustrates the perils of single-issue politics, although you’d never learn the principle of the matter from the NPR account. It seems that the NRA has launched a $75,000 ad campaign against state Rep. Debra Maggart, a long-time NRA member and avid gun-owner who a year ago had an “A+” rating from the NRA. Her sin? She and several other Tennessee Republican officials opposed a bill that would have allowed employees to keep guns in their cars while parked in their private employers’ parking lots.

The NRA’s Chris Cox, who’s spearheading this political vendetta and, in the process, is supporting Maggart’s tea-party backed opponent, invokes both “our First Amendment right to assemble to petition our government” and, of course, the Second Amendment, seemingly oblivious to the fact that neither is relevant here. In fact, the issue could not be simpler: individuals, including employers, have a right to determine the conditions on which others may enter their property.

The Second Amendment prevents the government, not private parties, from infringing your right to keep and bear arms. If a private party can ban you from his property for any reason, good or bad, he can do so for carrying a gun. So too with the First Amendment: it limits what governments, not private parties, may do; government may not violate your rights of assembly and petition, none of which is happening here.

As so often happens, here again we see how single-issue politics, in the name of liberty, ends up undermining liberty. The tea party should know better.

The landmark Heller ruling said the Constitution protects a person’s right to keep a gun in his home for purposes of self-defense, at least as against the federal government (the case was filed in the federal capital city, Washington, DC). Next, the Supreme Court ruled that the right to keep a gun in the home also had to be honored by state and local governments. The litigation has now moved on to consider whether, and to what extent, the right to keep and bear arms must be honored outside the home.

Yesterday, a federal court invalidated a Maryland law that granted carry permits only to those who could show a ”good and substantial reason” for carrying a gun (general worry about the possibility of a criminal attack was inadequate). The Court said the Maryland law “impermissibly infringes the right to keep and bear arms guaranteed by the Second Amendment.”

Last month Cato released a study concerning the frequency with which persons use guns for self-defense—way more often than the average person realizes.

Cato associate policy analyst David Kopel, has more over at the Volokh blog.

The paper makes many excellent points, but I’ll mention just three here. First, the average person tends to imagine that these self-defense situations involve criminals getting shot. Such cases do occur, but the overwhelming number of self-defense cases involve situations where the gun is never fired.

The second point relates to the first. The average person usually does not hear about defensive gun cases because news media organizations do not consider the incidents worthy of coverage. If a burglar runs away from a break-in when he discovers that someone is at the home and is armed, it may only garner a terse mention in the paper, if it makes the newspaper at all. With no shot fired, no injuries, and no suspect in custody, newspeople typically decline coverage. The point here is not to criticize the news media’s handling of such incidents–rather it is just to remind readers that we tend to hear about criminals using guns to perpetrate crimes, but we do not hear about many self-defense cases. In this milieu, it is understandable why many people would develop negative opinions about guns.

Third, when a gun owner does shoot a rapist or is able to hold a burglar at gunpoint until the police arrive on the scene, it is very likely that more than one crime has been prevented. That’s because had the culprit not been stopped, he very likely would have targeted other people as well.

Gun control proponents stress the idea of harm reduction. They say the enactment of firearm regulations will reduce accidents and the criminal use of guns. But if policymakers are truly interested in harm reduction, they must consider the number of crimes that are thwarted by gun owners. Each year gun owners prevent a great deal of criminal mayhem–murders, rapes, batteries, and robberies. Tough Targets gathers dozens and dozens of examples of ordinary people using guns to stop criminal attacks. The defensive use of guns happens much more often than most people realize.

In addition to the paper itself, we have a new page on the Cato web site that will track, to the extent we can, defensive gun cases around the country.

Much to my surprise and pleasure, this resulted in an invitation to appear on the National Rifle Association’s webcast to discuss the issue.

As I noted in the interview, I’m just a fiscal policy wonk, but the right to keep and bear arms should be a priority for anyone who believes in freedom and responsibility. And even though I only have a couple of guns, you can see that I’m raising my kids to have a proper appreciation for the Second Amendment.

In the NRA interview, I pointed out that law enforcement is one of the few legitimate functions of government, so it is utterly despicable when politicians fail to fulfill that responsibility and also deprive households from having the ability to protect themselves.

Three years after the Supreme Court’s landmark Heller ruling, which declared Washington, D.C.’s gun control laws unconstitutional, city officials keep fighting. Under pressure from another lawsuit concerning a de facto ban, the city says that guns may now be purchased at the police station. No details yet on whether residents will have to change into orange jump suits and wait in the holding cells while the police process the paperwork.

That’s the upshot of a recent decision by the Seventh Circuit Court of Appeals in the case of Ezell v. City of Chicago. This was a challenge to the new regulations the city enacted in the wake of McDonald v. City of Chicago case, which applied the Second Amendment to the states.

In an attempt to circumvent the Supreme Court’s clear holding, Chicago’s ordinance first mandates that would-be gun owners receive training at a firing range but then prohibits firing ranges from operating in the city. The court, in a striking opinion by Judge Diane Sykes (put her on your Supreme Court shortlist for the next Republican administration), tells the city to go back to the drawing board.

I won’t go into the details, but the court applied something greater than intermediate (but “not quite strict”) scrutiny and found that Chicago has not presented anything approaching a compelling reason for its restriction. Here’s an analysis of the opinion by Josh Blackman and some follow-up commentary from Cato associate policy analyst Dave Kopel.

Gratifyingly, Judge Sykes cites the Pandora’s Box article that Josh and I published early last year in the run-up to the McDonald argument (see footnote 11 on page 31). It’s quite an honor to appear in the same footnote as Randy Barnett, Steven Calabresi, Brannon Denning, Glenn Harlan Reynolds (the Instapundit), and many other noted scholars – including Akhil Amar, who in the wake of our Obamacare debate and bet may not appreciate it as much.

Congratulations to the intrepid Alan Gura (who also litigated McDonald and Heller v. District of Columbia) and to all the citizens of Chicago!